The Ombudsman's final decision:

Summary: Mr X complains the Council wrongly identified his property as a possible House of Multiple Occupation and misused its powers to enter and inspect his home. Based on the information available I am minded to find that the Council’s failure to maintain proper records of its investigation amounts to fault causing Mr X an injustice in the form of distress and unnecessary time and trouble.

The complaint

The complainant, whom I shall refer to as Mr X complains the Council wrongly identified his property as a possible House of Multiple Occupation and misused its powers to enter and inspect his home.

The Ombudsman’s role and powers

We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

What I found

Not all Houses in Multiple Occupation (HMO) require licenses. The Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006 describes a HMO that requires a license as a building that:

is comprised of three or more storeys;

is occupied by five or more persons; and

is occupied by persons living in two or more single households.

The Housing Act 2004 requires local housing authorities to take all reasonable steps to secure that applications for licenses are made in respect of HMOs in their area which are required to be licensed but are not.

What happened here

Since 2016 the Council has been proactively identifying properties which require a mandatory HMO license. It introduced a selective licencing scheme in certain areas of the borough, and carried out a publicity campaign. Mr X does not live in one of the selected areas.

The Council states that during a street survey in June 2017 it identified that Mr X’s street included some three storey properties which could potentially be HMOs requiring a license. Officers then carried out Land Registry and Council Tax searches and identified three possible HMOs on Mr X’s street. This included Mr X’s property.

An Officer, Officer 1, visited the properties on 24 July 2017 to carry out a doorstep survey. As Mr X was not at home, Officer 1 left a card asking Mr X to call the Council’s Environmental Health Team.

Mr X’s wife contacted the Council on 31 July 2017 and confirmed they were the owner occupiers of the property. The officer Mrs X spoke to told her the notice only applied to rented properties and she would update the Council’s records. The officer did not make a note of the call on the environment health system, or update the records.

The Council states Officer 1 visited Mr X’s property again on 6 September 2017 and left a further calling card. Mr X states he did not receive this card. Officer 1 then carried out an Andromeda search which retrieves information from the electoral roll, land registry, companies house etc. As this showed several unrelated people as recent occupants of Mr X’s property, Officer 1 wrote to Mr X advising him of the HMO licensing requirements. This letter was sent to Mr X’s previous address, so he did not receive it, and could not respond to it

On 25 September 2017 Officer 1 wrote to Mr X advising he intended to visit on 4 October 2017 to inspect the property. The letter explained the purpose of the visit was to rate the property under the Housing Health and Safety Rating System (HHSRS). It included a notice requiring Mr X to produce certain documents at the inspection, and set out the penalties if Mr X did not comply.

Mr X contacted Officer 1 on 3 October 2017 to express concern about the proposed inspection and questioned the Council’s entitlement to exercise its power of entry into his property. Officer 1 advised the Council was exercising the right of entry as it had reason to believe the property was rented to multiple occupants.

When Officer 1 visited on 4 October 2017, Mr X states it quickly became clear that they were a single family owner occupier and there was no valid reason for the inspection.

Officer 1’s records of the visit state:

“…the property was found to be owner occupied by a single family and has been for last 3 yea, [sic] which I verified via another local resident.”

Mr X complained to the Council about the Officer 1’s letters and visit. Mr X had been distressed by the letter of 25 September 2017, and had had to collect the requested documents and take time off for the visit. He had since found out the legislation did not apply to them as owner occupiers. He asserted there was no valid reason for the Council to send him the letter, and that Officer 1 had misrepresented the power of entry to illegally invade his home.

Mr X also complained about Officer 1’s attitude during the visit. He states that when it became clear he was the owner occupier, Officer 1 became defensive and hostile. Mr X was concerned the Council had unfairly targeted his property and asked for a full investigation.

The Council’s response acknowledged Mrs X had told the Council they were the owner occupiers of the property. The information had not been passed on to Officer 1, and the Council apologised for this. The Council explained its letters were drafted to provide as much information as possible and to inform landlords of their duties. It was satisfied Officer 1 had followed the correct procedures in sending Mr X a formal notice and arranging an inspection. The Council did not accept Officer 1 had broken the law or misused his powers of entry, and confirmed there was no malicious intent or discriminatory action.

Mr X was not satisfied by the Council’s response. He maintained there were no grounds for Officer 1 to inspect his home, and that the letter notifying him of the visit did not refer to a HMO or give any valid reasons for the inspection. Mr X did not consider the Council had carried out due diligence before exercising its powers of entry. He questioned why and how his property was identified, when his neighbours’ properties were not, and asked for an explanation for Officer 1’s actions.

The Council said it could not respond to all of Mr X’s questions as Officer 1 had left the Council. As Mr X remained dissatisfied he asked for his complaint to be considered further. The Council advised it had identified three properties on Mr X’s street as possible HMOs requiring a license and investigated each of them. It said Officer 1 arranged to inspect Mr X’s property as he had not responded to the calling cards. The Council was satisfied it had carried out the investigation which led to the visit correctly and in accordance with the Council’s procedure.

Mr X maintains the Council discriminated against him and misused its power of entry to invade his home. He states he has spoken with his neighbours and none of the five identical houses in his terrace received calling cards or letters from the Council. Mr X has asked the Ombudsman to investigate his concerns.

In response to my enquiries the Council states it looked at Mr X’s street for potential mandatory HMOs because of the size of the properties and the occupational use of the dwellings. Previous council tax searches of properties in the vicinity showed some were being used as multiple lets. The Council identified and investigated three properties on Mr X’s street as potential HMOs. One of which required a mandatory HMO license, one was a HMO, but did not meet the criteria for a license, and Mr X’s property was confirmed as a single owner occupier.

The Council denies it targeted and discriminated against Mr X. It states a land registry search for Mr X’s property listed two addresses for Mr X. This prompted Officer 1 to visit Mr X’s property in July 2017. The Council considers a large part of Mr X’s complaint must be attributed to the fact Mr X told the Council in July 2017 that the property was not a HMO. Had the Council made a note of this call on the environmental health database, it would not have made any further investigations.

In addition, the Council acknowledges its stage two response to Mr X’s complaint was poor, and the Council should have responded in more detail.

In its response to the draft decision the Council states it would not have ended its investigation based solely on Mrs X’s telephone call. This is a change in position since its response to my initial enquiries. The Council now states it would always follow up on its enquiries, and would have visited Mr X’s property notwithstanding Mrs X’s call. If it took information provided by potential landlords at face value, tenants in private rented properties would receive little protection.

Approximately 40 percent of properties in Tower Hamlets are within the private rental sector. The Council states officers use a range of factors to identify rented properties. These include: the condition of the front garden; excess refuse outside; the number of cars; the state of the property; complaints from neighbours; different designs of net curtains at the windows; and licensed or privately rented properties nearby.

The Council has not explained how it identified Mr X’s property as a potential HMO, while discounting other identical properties in Mr X’s street. Nor has it confirmed whether it carried out council tax and Land Registry checks on the other identical properties.

Mr X has also responded to the draft decision. Mr X remains of the view the Council has target him and discriminated against him. Mr X states there are 16 houses identical to his own in the street, and that his property is in a terrace of five identical properties. He has spoken to his neighbours who advised they were not contacted by the Environment Health Team. Mr X asserts the Council’s inability to explain how it identified his property while discounting his neighbours’ indicates a malicious motivation. He maintains the unwarranted inspection was part of a campaign of harassment against him by the Council.

Mr X also disputes the Andromeda search results. He states he lives at the property with his wife and two sons and there are no businesses carried out from his home. The council tax records and land registry records show Mr X is the freeholder and owner occupier.

The letters from the Council did not explain what a HMO was or ask whether the property was rented. Had the letters included more information about the reason for the inspection Mr X believes the matter could have been resolved sooner without the need for Office 1 to visit. He asserts the information was deliberately omitted.

Analysis

The documentation provided shows there was fault in the way the Council dealt with this matter, including the way it dealt with Mr X’s complaint.

The Council has not explained how it initially identified Mr X’s property as a potential HMO while discounting other identical properties in Mr X’s street. It has provided examples of the factors it looks for, but has not said which, if any of these factors applied to Mr X’s property. I recognise the officer who carried out the street survey has since left the Council, but would expect there to be a record of how/why Mr X’s property was identified. This failure to record how and why it identified Mr X’s property as opposed to others in the street amounts to fault.

There is no dispute Mrs X confirmed in July 2017 that the property was owner occupied, not a HMO. The Council failed to record this on its environmental health database. This failure to update its records also amounts to fault.

Whether this fault would have affected the subsequent investigation is now unclear. The Council initially stated that had it properly recorded Mrs X’s call, it would not have investigated the occupancy of Mr X’s property further. It has since changed its position and now states it would still have followed up on its enquiries. I would expect the Council to have a clear procedure for these investigations, that all officers are aware of and can refer to. The inconsistency in the Council’s responses suggest this is not the case.

The Council wrote to Mr X in September 2017 at his old address. This again is fault. It is unclear how this mistake happened. Mr X had sold that property three years earlier so the Council would have had no reason to write to him at that address about this matter. This letter sets out the requirements of the Council’s Selective Licensing Scheme and the criteria for mandatory HMO licenses. Had Mr X received this letter he would have had the opportunity to confirm he was the owner/ occupier at that stage.

Having identified fault, I must consider whether this has caused Mr X an injustice. Had the Council properly recorded the details of Mrs X’s call, and written to Mr X at the correct address in September 2017, I consider it more likely than not that the matter could have been resolved sooner. Mr X would have had the opportunity to address the Council’s queries and the Council would not have used its power of entry to inspect Mr X’s home. This would have avoided the distress and anxiety Mr X experienced and the unnecessary inconvenience he was put to.

Mr X feels the Council has targeted him and is treating him differently to his neighbours. The Council’s failure to explain how and why it identified Mr X’s property, rather than his neighbours’ as a potential HMO will have exacerbated this perception and added to his distress.

While the Council’s poor record keeping is unsatisfactory, it is not in itself evidence the Council targeted Mr X or his property. Mr X’s street was not part of the selective licensing scheme, but the Council does have a wider duty to try and identify HMOs in the borough which are required to be licensed but are not. The size and previous occupancy of some properties in Mr X’s street mean they could potentially be used as HMOs. We would not therefore criticize the Council for making initial enquiries to confirm the occupancy of these properties. This process has identified two properties in Mr X’s street which are in multiple occupation, one of which requires a mandatory license.

The documentation suggests the Council used its powers to enter Mr X’s property because of administrative errors and the failure to update its records, rather than any discriminatory motivation.

Agreed action

I recommended the Council apologise to Mr X and pay him £300 in recognition of the distress and anxiety he experienced, and the unnecessary time and trouble he was put to by the fault identified above.

The Council has agreed to this recommendation and should take the necessary action within one month of the final decision.

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